Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2005-473

JUNE
TERM, 2006

State of Vermont } APPEALED
FROM:

}

v. } District
Court of Vermont,

} Unit
No. 2, Chittenden Circuit

James C. Emery }

} DOCKET
NO. 323-8-05 CnCs

Trial Judge:
Dean B. Pineles

In
the above-entitled cause, the Clerk will enter:

Defendant
James C. Emery appeals from the trial court=s
order granting judgment to the State in this civil suspension proceeding. He
argues that the trial court erred in reaching its decision because his breath
sample was not collected in compliance with Department of Health regulations.
We affirm.

In August
2005, defendant was charged with driving under the influence of intoxicating
liquor, second offense, and civil license suspension proceedings were
instituted. The only issue defendant raised at the civil suspension hearing
was whether police had observed him for fifteen minutes before administering
the breath test, and if not, whether his breath test results were admissible.
The court found the breath test results admissible and reliable, and it granted
judgment to the State.

In reaching
its conclusion, the court made the following findings. A police officer
observed defendant for fifteen minutes before administering the first breath
test. Defendant stated that he had not burped, belched, or vomited during the
observation period. The first test produced an invalid sample. A second test,
administered four minutes later, also produced an invalid sample. Shortly
thereafter, the officer administered a third test, which showed defendant=s BAC at .329. A fourth test,
administered four minutes later, showed a .322 BAC.

Defendant
argued that the two invalid samples were caused by mouth alcohol resulting from
a burp or belch, and that the officer should have observed defendant for an
additional fifteen-minute period following the second invalid sample to ensure
that any mouth alcohol was dissipated. The court rejected this argument.
Given defendant=s
statement that he had not burped before the first test, the court explained, it
was persuaded by the State=s
argument that the invalid samples resulted from defendant not blowing hard
enough into the machine, rather than mouth-alcohol contamination. In any
event, the court noted, regardless of the cause of the invalid samples, the Datamaster
machine determined that the third and fourth samples were valid, and there was
no evidence to suggest that the machine was not working properly. Indeed, the
court explained, defendant=s
argument assumed that the Datamaster was working properly when it invalidated
the first two samples.

Based on
expert testimony presented by the State, the court found that the Datamaster
could detect potentially interfering compounds, such as mouth alcohol, in a
breath sample, and that in such a case, it would determine that the sample was
invalid. The machine could also detect an inadequate sample of breath, and in
such circumstances, it would also produce an invalid result. Thus, if
defendant had burped, belched, vomited, or produced an inadequate sample of
breath, the machine would have rejected the third and fourth samples. It did
not. The court thus concluded that, although defendant was not observed for
fifteen minutes between the second invalid sample and the two valid samples,
the latter samples were nonetheless accurate. The court therefore entered
judgment for the State. Defendant appealed.

On appeal,
defendant argues that the trial court erred in admitting his breath test
results because, absent a fifteen-minute waiting period after an invalid
sample, the subsequent sample could not be collected consistent with Department
of Health regulations. Defendant attempts to draw a distinction between the
officer=s compliance
with the fifteen minute observation period, which he acknowledges goes to the
weight of the evidence rather than its admissibility, and the performance of
the instrument itself. He asserts that, with respect to the instrument, Athere is a separate and
distinct fifteen minute rule that is a foundational requirement to
admissibility.@
Assuming the test results were properly admitted, defendant argues, the trial
court erred in placing any weight on the results because they were not
collected according to Department of Health standards.

These
arguments are without merit. As defendant recognizes, Awe have consistently refused to suppress
breath tests based on claims that the processing officer failed to follow the
adopted procedures for administering the tests.@State v. McQuillan, 2003 VT 25, &
8, 175 Vt. 173. AAs
long as the State demonstrates that the analysis of the challenged sample was
performed by an instrument that meets the Department=s performance standards,
the defendant may not otherwise challenge the admissibility of the test
result . . . .@Id.,
& 7. Putting
aside the murky distinction that defendant attempts to draw, he challenges the
reliability of the instrument for the first time on appeal. He did not present
any evidence to this effect at the hearing, and indeed, as the trial court
found, his argument below assumed that the machine was working properly.
Defendant waived his argument by failing to raise it below, and we therefore do
not address it. See Bull v. Pinkham Eng=g Assocs., 170 Vt. 450, 459 (2000) (AContentions not raised or
fairly presented to the trial court are not preserved for appeal.@). Absent evidence to
challenge the Datamaster=s
reliability, defendant=s
arguments Ago only to
the weight that the jury could give to the test results and not to
admissibility.@McQuillan,
2003 VT 25, & 9
(quotations omitted). The court did not err in admitting the breath test
results.

We similarly
reject defendant=s
unsupported assertion that the trial court could not place any weight on the
test results. As noted above, the State presented expert testimony that the Datamaster
would detect mouth alcohol, and would not produce a reading if mouth alcohol
were present in the sample. Additionally, defendant stated at the time of the
first test that he had not burped during the observation period. The trial
court found the State=s
evidence persuasive, and we will not disturb its assessment of the evidence on
appeal. See Kanaan v. Kanaan, 163 Vt. 402, 405 (1995) (trial court=s findings entitled to wide
deference on review because it is in unique position to assess the credibility
of witnesses and weigh the evidence presented). We find no error.